Citation Nr: 21002680 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-41 117A DATE: January 14, 2021 ORDER Entitlement to a disability rating greater than 10 percent for hypertension is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The record evidence shows that, prior to his death, the Veteran’s service-connected hypertension required continuous medication for control. CONCLUSION OF LAW The criteria for entitlement to a disability rating greater than 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7101 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1984 to December 1997 in the U.S. Marine Corps. He also had additional unverified service. He died in October 2018. The Appellant is his surviving spouse and substitute claimant. In March 2019, the Board granted, in pertinent part, a 10 percent rating for the service-connected hypertension. The Appellant, through her attorney, and VA’s Office of General Counsel appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). Both parties to the Joint Motion requested that the Court vacate only that part of the Board’s March 2019 decision which denied a disability rating greater than 10 percent for hypertension. The Court granted the Joint Motion in June 2020. Having reviewed the record evidence, the Board finds that this claim should be characterized as stated above. Both parties to the Joint Motion specifically argued that the Board erred in issuing the March 2019 decision less than 30 days after the Appellant was notified by the Agency of Original Jurisdiction (AOJ) that she was an appropriate substitute claimant for the Veteran in this appeal. This was the basis of the vacate and remand issued by the Court. At this time, more than 30 days have passed since that correspondence. In addition, following the Court’s vacate and remand, the appellant and her attorney were given an additional 90 days in which to submit evidence via a letter dated in August 2020. Therefore, all due process has been met and the error identified by the Court has been corrected. The Appellant’s attorney asserted in a July 2020 brief that a claim of entitlement to a TDIU was included in the currently appealed increased rating claim for hypertension. The record evidence shows that, in a decision dated on January 15, 2020, under docket # 19 23 889, the Board remanded, in pertinent part, a claim of entitlement to a TDIU to the AOJ. This Board decision was issued to the Appellant and her attorney that same day on January 15, 2020. The AOJ subsequently implemented the Board’s January 2020 decision in a rating decision dated in February 2020. This rating decision addressed multiple claims, including the previously remanded TDIU claim. In the February 2020 rating decision, the AOJ specifically concluded that, because a 100 percent schedular rating was in effect for the Veteran’s service-connected prostate cancer, a claim of entitlement to a TDIU was moot. This is error under Bradley which requires remand. See Bradley v. Peake, 22 Vet. 280 (2008) (finding that, even after assigning a 100 percent schedular rating, VA’s duty to maximize benefits requires consideration of TDIU for purposes of special monthly compensation under 38 U.S.C. § 1114(s)). For example, special monthly compensation (SMC) may be warranted if a Veteran has a 100 percent disability rating for a single service-connected disability and VA finds that TDIU is warranted for service-connected disabilities other than the disability rated at 100 percent (which satisfies the second requirement of SMC of an additional disability or disabilities of 60 percent). Id., at 294 (analyzing 38 U.S.C. § 1114(s)). The Appellant and her attorney were notified of the February 2020 rating decision in March 2020 correspondence. The Board notes that the time for initiating an appeal of the February 2020 rating decision has not yet expired. Nevertheless, although the TDIU claim itself is docketed under a different docket number, the Board finds that it has jurisdiction over a TDIU claim in this appeal. This claim is addressed further in the REMAND portion of this decision below. See also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA may waive timely filing of substantive appeal implicitly or explicitly and as to any issue or claim raised in substantive appeal). 1. Entitlement to a disability rating greater than 10 percent for hypertension The Board finds that the preponderance of the evidence is against granting the claim of entitlement to a disability rating greater than 10 percent for hypertension. The Veteran, prior to his death, and the Appellant, after the Veteran’s death, essentially contend that this disability is more disabling than currently evaluated. The record evidence does not support these assertions. It shows instead that, prior to the Veteran’s death, this disability required continuous medication for control. For example, on VA hypertension Disability Benefits Questionnaire (DBQ) in June 2013, the Veteran complained that his service-connected hypertension “was not controlled by his [medications] and he was prescribed different and stronger medications” by his VA treating clinicians. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported being treated in the emergency room (ER) for elevated blood pressure (or hypertension) although the VA examiner noted that, in fact, this ER visit was for a dislocated right third digit. His blood pressure on examination was 140/85, 138/84, and 130/88. His hypertension required taking continuous medication (atenolol 50 mg once daily and lisinopril 5 mg once daily) for control. The diagnosis was hypertension. The record evidence shows that, prior to the Veteran’s death, his service-connected hypertension required continuous medication for control. This supports the assignment of the current 10 percent rating for this disability under DC 7101. See 38 C.F.R. § 4.104, DC 7101 (2019). There is no indication that, prior to his death, the Veteran’s diastolic pressure was predominantly 110 or more or his systolic pressure was predominantly 200 or more (i.e., at least a 20 percent rating under DC 7101) such that a disability rating greater than 10 percent is warranted for his service-connected hypertension. Id. Although both parties to the Joint Motion stated that the Appellant should be provided an opportunity to submit additional evidence and argument, no additional relevant evidence or argument was received following the Court’s June 2020 Order granting the Joint Motion. Critically, neither the Veteran, prior to his death, nor the Appellant, since Veteran’s death, has identified or submitted any evidence demonstrating entitlement to a disability rating greater than 10 percent for service-connected hypertension. Thus, the Board finds that the criteria for a disability rating greater than 10 percent for hypertension have not been met. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Appellant and her attorney essentially contend that, during his lifetime, the Veteran was entitled to a TDIU. As outlined in the Introduction, the Board previously remanded a TDIU claim in January 2020 to the AOJ. The AOJ concluded that a TDIU claim was moot in the February 2020 rating decision which granted a 100 percent schedular rating for the Veteran’s service-connected prostate cancer. As also outlined in the Introduction, this conclusion constitutes error under Bradley which requires remand. Thus, the Board finds that, on remand, the AOJ must adjudicate the previously remanded issue of entitlement to a TDIU. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the January 2020 remand instructions. Given this error, another remand is required. The matters are REMANDED for the following action: Adjudicate the issue of entitlement to a TDIU. A copy of any rating decision on this claim should be provided to the Appellant and her representative. This claim should be returned to the Board only if appropriate. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.